Quote:
Originally Posted by gideongallery
(Post 17327552)
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You should try reading what the Supreme Court said... what you're talking about has "zero" to do with sampling.
http://en.wikipedia.org/wiki/Sampling_(music)
2 Live Crew, a hip-hop group familiar with controversy, was often in the spotlight for their 'obscene' and sexually explicit lyrics. They sparked many debates about censorship in the music industry. However, it was their 1989 album As Clean as They Wanna Be (a re-tooling of As Nasty As They Wanna Be) that began the prolonged legal debate over sampling. The album contained a track entitled "Pretty Woman," based on the well-known Roy Orbison song Oh, Pretty Woman. 2 Live Crew's version sampled the guitar, bass, and drums from the original, without permission. While the opening lines are the same, the two songs split ways immediately following.[1]
For example:
Roy Orbison's version – "Pretty woman, walking down the street/ Pretty woman, the kind I'd like to meet."
2 Live Crew's version – "Big hairy woman, all that hair ain't legit,/ Cause you look like Cousin Itt."[2]
In addition to this, while the music is identifiable as the Orbison song, there were changes implemented by the group. The new version contained interposed scraper notes, overlays of solos in different keys, and an altered drum beat.[2]
The group was sued by the song's copyright owners Acuff-Rose. The company claimed that 2 Live Crew's unauthorized use of the samples devalued the original, and was thus a case of copyright infringement. The group claimed they were protected under the fair use doctrine. The case of Campbell v. Acuff-Rose Music came to the Supreme Court in 1994.
In reviewing the case, the Supreme Court didn't consider previous ruling in which any commercial use (and economic gain) was considered copyright infringement. Instead they re-evaluated the original frame of copyright as set forth in the Constitution. The opinion that resulted from Emerson v. Davies played a major role in the decision.[1]
"[In] truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before." Emerson v. Davies,8 F.Cas. 615, 619 (No. 4,436) (CCD Mass. 1845)[2]
Perhaps what played a larger role was the result from the Folsom v. Marsh case:
"look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work." Folsom v. Marsh, 9 F.Cas. 342, 348 (No. 4,901) (CCD Mass. 1841)[2]
The court ruled that any financial gain 2 Live Crew received from their version did not infringe upon Acuff-Rose because the two songs were targeted at very different audiences. 2 Live Crew's use of copyrighted material was protected under the fair use doctrine, as a parody, even though it was released commercially.[1] While the appellate court had determined that the mere nature of the parody made it inherently unfair, the Supreme Court's ruling reversed this decision, with Justice David Souter writing that the lower court was wrong in determining parody alone to be a sufficient criterion for copyright infringement.[3]
[edit] 1990s
In the early 1990s, Vanilla Ice sampled the bassline of the 1981 song "Under Pressure" by Queen and David Bowie for his 1990 single "Ice Ice Baby".[4] Freddie Mercury and David Bowie did not receive credit or royalties for the sample.[5] In a 1990 interview, Van Winkle said the two melodies were slightly different because he had added an additional note. In later interviews, Van Winkle readily admitted he sampled the song and claimed his 1990 statement was a joke; others, however, suggested he had been serious.[6][7] Van Winkle later paid Mercury and Bowie, who have since been given songwriting credit for the sample.[6]
More dramatically, Biz Markie's album I Need a Haircut was withdrawn in 1992 following a US federal court ruling,[8] that his use of a sample from Gilbert O'Sullivan's "Alone Again (Naturally)" was willful infringement. This case had a powerful effect on the record industry, with record companies becoming very much concerned with the legalities of sampling, and demanding that artists make full declarations of all samples used in their work. On the other hand, the ruling also made it more attractive to artists and record labels to allow others to sample their work, knowing that they would be paid—often handsomely—for their contribution.
A notable case in the early 1990s involved the dispute between the group Negativland and Casey Kasem over the band's use of un-aired vocal snippets from Kasem's radio program America's Top 40 on the Negativland single "U2".
Another notable case involved British dance music act Shut Up And Dance. Shut Up And Dance were a fairly successful Breakbeat Hardcore and rave scene outfit who like their contemporaries had liberally used samples in the creation of their music - without clearance from the individuals concerned. Although frowned upon the British music industry usually turned a blind eye to this mainly underground scene, however with rave at its commercial peak in the UK, Shut Up And Dance released the single "Raving I'm Raving" an upbeat breakbeat hardcore record which shot to #2 on the UK Singles Chart in May 1992. At the core of "Raving" were significant samples of Marc Cohn's hit single "Walking in Memphis" with some of the lyrical content changed and sung by Peter Bouncer. Shut Up And Dance hadn't sought clearance from Marc Cohn for the samples they used in "Raving" and Marc Cohn took legal action against Shut Up And Dance for breach of copyright. An out of court settlement was eventually reached between Shut Up And Dance and Cohn which saw "Raving" in its current form banned and the proceeds from the single given to charity. Ironically Shut Up and Dance were later commissioned to produce remixes for Cher's 1995 cover version of "Walking In Memphis" and were allowed by Cohn to use parts from the deleted "Raving I'm Raving" for this remix.
The Shut Up And Dance case had major ramifications on the use of samples in the UK and most artists and record labels now seek clearance for samples they use. However there are still cases which involve UK artists using uncleared samples. In October 1996 The Chemical Brothers released the single Setting Sun inspired by The Beatles' Tomorrow Never Knows and featuring Oasis' Noel Gallagher on vocals - a long admirer of The Beatles' work. Setting Sun hit #1 on the UK Singles Chart on first week of release and the common consensus was The Chemical Brothers had sampled/looped significant parts of Tomorrow Never Knows in the creation of Setting Sun. The three remaining Beatles took legal action against The Chemical Brothers/Virgin Records for breach of copyright, however a musicologist proved The Chemical Brothers had independently created Setting Sun - albeit in a similar vein to Tomorrow Never Knows.
In 1997 The Verve was forced to pay 100% of their royalties from their hit "Bitter Sweet Symphony" for the use of a licensed sample from an orchestral cover version of The Rolling Stones' hit "The Last Time".[9] The Rolling Stones' catalogue is one of the most litigiously protected in the world of popular music—to some extent the case mirrored the legal difficulties encountered by Carter the Unstoppable Sex Machine when they quoted from the song "Ruby Tuesday" in their song "After the Watershed" some years earlier. In both cases, the issue at stake was not the use of the recording, but the use of the song itself—the section from "The Last Time" used by the Verve was not even part of the original composition, but because it derived from a cover version of it, Mick Jagger and Keith Richards were still entitled to royalties and credit on the derivative work. This illustrates an important legal point: even if a sample is used legally, it may open the artist up to other problems.
[edit] 2000s
In the summer of 2001, Mariah Carey released her first single from Glitter entitled "Loverboy" which featured a sample of "Firecracker" by Yellow Magic Orchestra. A month later, Jennifer Lopez released "I'm Real" with the same "Firecracker" sample. Carey quickly discarded it and replaced it with "Candy" by Cameo.
In 2001, Armen Boladian and his company Bridgeport Music Inc. filed over 500 copyright infringement suits against 800 artists using samples from George Clinton's catalogue.
Public Enemy recorded a track entitled "Psycho of Greed" (2002) for their album Revolverlution that contained a continuous looping sample from The Beatles' track "Tomorrow Never Knows". However, the clearance fee demanded by Capitol Records and the surviving Beatles was so high that the group decided to pull the track from the album.
Danger Mouse with the release of The Grey Album in 2004, which is a remix of The Beatles' self-titled album and rapper Jay-Z's The Black Album has been embroiled in a similar situation with the record label EMI issuing cease and desist orders over uncleared Beatles samples.
On March 19, 2006, a judge ordered that sales of The Notorious B.I.G.'s album Ready to Die be halted because the title track sampled a 1992 song by the Ohio Players, "Singing in the Morning", without permission.[10]
On November 20, 2008, electronic band Kraftwerk convinced the German Federal Supreme Court that even the smallest shreds of sounds ("Tonfetzen") are "copyrightable" (e.g. protected), and that sampling a few bars of a drum beat can be an infringement.[11]
